China’s central government has warned Hong Kong that its courts must defer to Beijing on constitutional matters, a striking reproach to a judiciary whose reputation for independence has underpinned the city’s importance as a financial centre.
In a series of strongly worded statements, Chinese officials repudiated a decision by a Hong Kong court Monday that declared unconstitutional a law banning the use of masks, which have been worn by protesters over the past five months in demonstrations and violent clashes with police. The decision, which said banning masks “exceeds what is reasonably necessary to achieve the aim of law enforcement,” was seen as a vivid example of the independence of Hong Kong’s courts.
But the angry response from Beijing Tuesday underscored the power mainland China holds over Hong Kong, including over its judicial system, and has raised concerns that if Chinese authorities cannot frighten the city’s jurists into reversing course – the decision is likely to be appealed, and there will be tremendous pressure on the appeals court – Beijing will reinterpret the city’s constitutional document, the Basic Law, to limit their role. Such an act could alter the balance between local control and Beijing’s oversight that is at the heart of the one country, two systems principle that governs Hong Kong.
At stake are the city’s legal foundation and the degree of Beijing’s legal influence. For years, it has been the strong role of law – and the freedoms it protects – that has perhaps most differentiated Hong Kong from mainland China. Fears that those freedoms are being threatened have been the principal impetus for protests that on Tuesday night saw police maintaining a siege around a university occupied by dozens of demonstrators, who have refused to leave.
For Chinese authorities, however, the court’s decision on the mask ban presented an affront to political power.
“This is a blatant challenge to the authority of the NPC Standing Committee and to the power vested in the Chief Executive by law to govern. It will have serious negative social and political impact,” said Yang Guang, spokesperson for the Hong Kong and Macao Affairs Office of the State Council, in a statement released by state media. The NPC (National People’s Congress) is China’s rubber-stamp parliament, which is empowered by the Basic Law to overrule constitutional decisions made by Hong Kong’s courts.
Indeed, determining whether Hong Kong’s laws comply with the Basic Law “can only be judged and decided by the Standing Committee of the National People’s Congress,” said Yan Tanwei, a spokesman for the committee’s Legislative Affairs Commission, in a statement released Tuesday.
“No other authority has the right to make judgments and decisions,” the statement said, adding that Hong Kong’s courts hold the power to review the constitutionality of local legislation that is “within the limits of the autonomy of the region.”
But Beijing can reinterpret the Basic Law – amending how it can be applied.
Beijing has issued five such reinterpretations since the handover of the city to China in 1997, “which is indicative of considerable restraint,” said Grenville Cross, a criminal justice analyst and former director of public prosecutions in Hong Kong. In the current case, he said, Beijing may be taking the view that the violent protests are “intended to subvert” the central government and "promote secession,” which would mandate its involvement.
But while Beijing holds such power, it should be used “sparingly, or confidence in the rule of law would be affected,” said Yap Po Jen, a constitutional scholar at the University of Hong Kong.
Chinese scholars see it in more direct terms: In rejecting the mask law, the Hong Kong court engaged in “judicial activism” and removed “another tool to recover order in this city,” said Li Xiaobing, a legal scholar at Nankai University. “This ruling is further weakening the law enforcement abilities of the government and Hong Kong police.”
The multiple attacks on the court decision Tuesday serve as a warning to Hong Kong’s judges not to move against Beijing, lest the NPC issue another reinterpretation of the Basic Law to limit local judicial powers to review the constitutionality of legislation, said Benny Tai, one of Hong Kong’s most prominent legal scholars and pro-democracy activists.
“The signs are very worrying,” Prof. Tai said. Such a change would mean “the political organs can decide everything,” opening the door to violations of civil rights “without any protection from the court. That may be the situation Hong Kong is now facing.”
There are grounds for such worry.
Hong Kong human-rights lawyer Mark Daly said he has “met with senior officials in Beijing considering increased usage of interpretations and second guessing our judges, and these comments today go further.”
China’s criticism of the mask law decision suggests that Beijing “has not yet fully understood the judgment,” said Johannes Chan, a constitutional expert and former dean of the faculty of law at the University of Hong Kong. And such "premature comment is not helpful to maintaining respect for the rule of law in Hong Kong or in China.”
And China risks doing damage to Hong Kong if it undermines the city’s courts, said Carole Petersen, a law professor at the University of Hawaii at Manoa and an expert in the city’s constitution.
“If the central government tries to remove the power of interpretation from the local Hong Kong courts then it will have effectively destroyed Hong Kong’s autonomy under one country, two systems,” she said. ”If that happens, the international business community will have very little faith in Hong Kong’s common law legal system and will be far less likely to invest in Hong Kong.”
Local activists also warned about the consequences.
Beijing’s comments mean “judicial review, a tool often seen as a last resort to deter government violation, is losing its effectiveness and authority,” said Johnson Yeung, a human-rights advocate.
“When all legitimate means to protect fundamental protection has become obsolete, the protest movement has no choice but to resolve their demands on the street.”
With reporting by Alexandra Li
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